LINDA ROSS, APPELLANT,
v.
JERE SANDY ROSS, APPELLEE
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In this Florida family law case, Linda Ross appeals from a judgment dissolving her marriage and awarding custody of their one-and-a-half-year-old child to the father. The appellate court affirmed the trial court's custody decision and rejection of alimony and attorney's fees, finding no abuse of discretion.
The appellate court held that although Florida law favors the mother in custody disputes involving infants of tender years when other factors are equal, the trial court's custody determination is reviewed for abuse of discretion and should not be reversed absent clear abuse. The judgment awarding custody to the father was affirmed because no abuse of discretion was shown. The failure to award alimony was proper because the wife presented no evidence of need or the husband's ability to pay, and no basis existed for attorney's fees.
[1] In child custody determinations, the mother of an infant of tender years should receive prime consideration for custody when other essential factors are equal.
[2] A trial court's determination of a child's best interests in a custody proceeding will not be reversed on appeal absent a showing of abuse of discretion.
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Join FLexlaw to unlock all legal intelligence“the mother of an infant of tender years should receive prime consideration for custody”
Establishes Florida's maternal presumption in custody cases involving young children, though not an absolute rule
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Join FLexlaw to unlock all legal intelligenceLinda Ross and Jere Sandy Ross, aged 25 and 27 respectively, were married in 1971 and had one child together. The parties entered into a property sett…
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NATHAN, Judge.
Linda Ross appeals from a final judgment of dissolution of marriage awarding custody of the parties’ one and one-half year old child to the father, Jerep Sandy Ross, and from the failure of the trial court to award alimony to the wife or attorneys fees to her attorneys.
The husband and wife, age 27 and 25, respectively, were married in 1971 and one child was born of the marriage. Just prior to dissolution of the marriage, the parties entered into a property settlement agreement which omitted alimony. Apparently, the sole contested issue before the trial court was the matter of custody of the child which, after extensive testimony, was awarded to the husband, with liberal rights of visitation to the mother.
On appeal, the wife and mother contends that since the trial judge did not find her to be unfit, due to the tender age of the child, there is a presumption that she should have custody of the child. Her statement of the law is well taken. Although § 61.13(2), Fla.Stat., provides for equal consideration of mother and father in a determination of custody, the law of Florida is still that, other essential factors being equal, the mother of an infant of tender years should receive prime consideration for custody. Anderson v. Anderson, Fla.1975, 309 So. 2d 1; Forman v. Forman, Fla.App.1975, 315 So. 2d 9.
However, in a child custody proceeding, it is the function of the trial judge to determine what is in the best interests of the child. An appellate court should not reverse the trial judge’s findings absent a showing of abuse of discretion. Grant v. Corbitt, Fla.1957, 95 So. 2d 25; Dinkel v. Dinkel, Fla.1975, 322 So. 2d 22. Where, as in the case sub judice, there is conflicting testimony as to the best interests of the child insofar as custody is concerned, the judgment of the trial court should not be disturbed absent a finding of abuse of discretion, which requires a lack of substantial evidence to sustain the trial judge’s findings. Cf. Dinkel v. Dinkel supra. After hearing extensive testimony, the trial judge made the determination that the young child’s welfare would best be served by awarding custody to the father. No clear abuse of discretion having been shown, the judgment of the trial court is affirmed.
As to the trial court’s failure to award alimony to the wife, testimony was presented that the wife is educated and employed and no showing of any need for alimony was made before the trial court. The issue of the husband’s ability to pay and the wife’s need for alimony was not raised at the hearing. These are the factors to be considered by the court in awarding alimony. Kahn v. Kahn, Fla.1955, 78 So. 2d 367; Baker v. Baker, Fla.App.1974, 299 So. 2d 138. Neither is there a basis in the record for an award of attorneys fees for the wife’s attorney as there was no evidence or attempt to put on evidence in this regard. See Lyle v. Lyle, Fla.App.1964, 167 So. 2d 256.
For the reasons stated, the judgment of the trial court is affirmed.
Affirmed.
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Young v. Hector, 740 So. 2d 1153 (Fla. 3d DCA 1998)…left undisturbed on appeal. See Canakaris, 382 So. 2d at 1203; Dinkel v. Dinkel, 322 So. 2d 22, 24 (Fla.1975); Bader v. Bader, 639 So. 2d 122, 124 (Fla. 2d DCA 1994) (en banc); Jones v. Jones, 633 So. 2d 1096, 1099 (Fla. 5th DCA 1994); Ross v. Ross, 321 So. 2d 443, 444 (Fla. 3d DCA 1975). Appellate courts are never permitted to retry a court’s determination in this regard de novo or reweigh the evidence. [*1159] See Reinhart v. Reinhart, 291 So. 2d 103, 105 (Fla. 1st DCA 1974) (stating “[i]t may well be that…
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In re the Marriage of Betty J. Kershner v. Crocker, 400 So. 2d 126 (Fla. 5th DCA 1981)…ial factors being equal, [*127] the mother of the infant of tender years should receive prime consideration for custody.” Dinkel v. Dinkel, 322 So. 2d 22, 24 (Fla.1975). See also Corvison v. Corvison, 362 So. 2d 323 (Fla. 3d DCA 1978); Ross v. Ross, 321 So. 2d 443 (Fla. 3d DCA 1975). In other words, where the equal consideration given to the father in determining child custody results in a finding that both parties are equally fit to have custody, children of tender years should be awarded to the mother. Klav…
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Demaso v. Demaso, 345 So. 2d 391 (Fla. 3d DCA 1977)…*392] what is in the best interest of the child and absent a showing of an abuse of discretion (which requires a lack of substantial evidence to sustain the judge’s determination), an appellate court will not disturb the custody award. Ross v. Ross, 321 So. 2d 443 (Fla.3d DCA 1975) and cases cited therein. There was substantial competent evidence presented in this case to support the award of custody to the father and we find no abuse of discretion. On cross-appeal James Demaso urges as error the award of an…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dinkel v. Dinkel, 322 So. 2d 22 (Fla. 1975)
- Lyle v. Lyle, 167 So. 2d 256 (Fla. 2d DCA 1964)
- Kahn v. Kahn, 78 So. 2d 367 (Fla. 1955)
- Beulah Grant v. Corbitt, 95 So. 2d 25 (Fla. 1957)
- Anderson v. Anderson, 309 So. 2d 1 (Fla. 1975)
- Baker v. Baker, 299 So. 2d 138 (Fla. 3d DCA 1974)
- Errol D. Forman v. Forman, 315 So. 2d 9 (Fla. 3d DCA 1975)